"Presidents come and go, but the supreme court stays forever." -President Howard Taft
Often isolated from the American people and the strings that become attached to United States politics, the Supreme Court resides in a secluded realm of legal debate and decision. Our court system was designed this way, separated and isolated as a neutral arbitrator to defend the rights of the wrongly accused, discriminated against and taken advantage of. The decisions the Supreme Court can impact the way of life in such a powerful way, but few of us understand its impact or influence on law. The only way in which the court however can broadcast its opinions to the public is through their concurring and dissenting opinions. Over the course of this section of the project, the influence of these opinions, as well as the rhetorical devices that are explicitly used to aid their purpose will be examined.
When an article or bill is sent to the Supreme Court, it is because there is debate over the constitutionality and legality of its provisions. The Supreme Court cannot afford to be indecisive in the precedent that it is about to set. It must lay down a strong, lucid voice that provides the exact specifications for why the court's decision was made in the way it was. They are designed to be, “determinant and value free, as opposed to indeterminate and value based.” (Chemerinsky) Although judicial activism and judicial restraint are often influenced by the conservative and liberal values of the court, they must be hidden in the statements released, which provide the only insight to how a decision was made, and how decisions will even be continued to be made. Precedent in itself is a rhetorical device that can be used by the court to add ethos to its decisions. For example, cases may refer to an opinion as a factor in why that decision was made, but loosely relate to the actual grounds for discussion or facts of the case. Because the court understands that its audience lacks the resources or time to review these cases themselves, the assumption is that they are fact and provide evidence of support.
Syntax and diction are also some of the more important determinants of rhetorical impact in Supreme Court cases. Concurring opinions may use words that detract from an influence on change or activism, while dissenting opinions may use stronger word choice which blatantly attack the activism of the court. The differences in these styles can be seen across the spectrum of the political viewpoints among today’s chief justices. Conservatives who use more reserved language to hide the activism of their agenda will switch tones to attack the opinions made by their liberal counterparts. For example, an opinion which supports individual rights over national security may be called outlandish by conservative justices, while those same justices will use reserved tones and word choice when writing opinions on the inclusion of the 10th amendment and the rights of individual states. Liberals on the other hand may attack such activism by conservative justices, but then write relatively reserved opinions on social justice agendas in regard to minority rights and affirmative action. All else equal however, the word choice of the court, whether dissenting or concurring, is directly proportional to the time. (Chemerinsky) It has arguably become more sarcastic and lose while the influence of formal grammar in the United States has declined. Justices are more likely than not to use what Chemerinsky calls a “poison pen” which uses strong diction to emphasize the extent of anger dissenters regard toward the ruling. “Nothing short of preposterous, entirely irrational, and beyond absurd” are examples in which one can see this play out. Such choices strengthen the rhetorical impact of any argument a justice attempts to make.
Most importantly, what the court must encounter when crafting its decisions are its audiences, which are a wide spectrum of parties who all will have complete access to the opinion document, but not to the workings or deliberations of the court itself. Opinions must be written so they can be interpreted and set into law by lower circuitry and district courts, as well as referenced and used as evidence in future cases by attorneys and lawyers. As a result the lofty language of the documents must strike a fine balance for achieving its just as significant other purpose of connecting with its other audiences, the press, the public and the parties involved in the case. Supreme Court justices must carefully choose and balance their rhetoric to reach such a wide variety of target audiences. Paragraphs must be explainable but at the same time be in the highest order of formality regarding law.
The supreme court and its opinions are just one example of how we get an inside look at the judicial system in the United States. Its an oxymoron how the neutral arbitrator of our democratic government, the omniposcent all seer of what is right and what is wrong, is connected with a deliberate way through rhetoric to manipulate opinions for their audiences. Throughout this project, the repetition of this feat of seclusion and lack of knowledge will bleed through to convey the true rhetorical practices of our third branch of government.
The Opening Statement- Understanding your Audience
When one thinks of rhetoric in the court, the first example that will come to mind is the rhetorical tools used by lawyers in convincing their jurors. Argument and debate is a job, to these men and women who sometimes have to defend parties in which their own personal beliefs conflict their motives and defence of their party. Being well versed in rhetorical strategy and knowing how to manipulate the Aristotelian triangle are essential for being confident on the floor to win the case.
The first priority for any lawyer is that they know who their audience is, the jurors. Everything else that goes on in the process of a trial, no matter how publicized or culturally charged, is irrelevant. It is one misconception that we have of our legal system, which will be addressed later, that the opinions of the public should be influential in the decision. That is not the case. It is the jury, who is the lawyer’s lone audience.
Any good author, musician, artist, orator, or leader knows that the first step in convincing someone is knowing who they are. That way their strengths and weaknesses, opinions and preconceptions, and even sometimes vulnerability and innocence, can be isolated to instigate a positive response in the speaker’s favor. Lawyers are able to learn about their audience, and even isolate it in their favor for the selection of the jury. In high profile murder cases, just because one is summoned by the court to jury duty doesn’t mean that they will be on the jury in the case. Sometimes roughly 200 people are called to the jury, and each one is questioned by both the defense and the prosecution. Since both the prosecution and the defense can appeal which jurors are selected it becomes a passive aggressive chess match for obtaining jurors in an attorney's favor. For example, parents may be controversial jurors for any cases involving the rape, disappearance or murders of minors, because the influence pathos can make on their decision making. This will ultimately help one side of the case. Other times, lawyers may look for one juror who is an outsider, similar to the phenomena that occurred in twelve angry men, to increase the likelihood of a hung jury, or increase the fairness of the trial in general if there is worry about civil rights influence. Lawyers are not only allowed to petition jurors on presumption of guilt and challenges for cause, they are also reserved a set amount of peremptory challenges to swing the experience of the jury in their favor. It is a tactical game of rhetoric that many overlook.
Obtaining an optimal audience is one thing, executing and delivering a statement that isolates the vulnerabilities of the jury is another. Attorneys can use a wide variety of devices in their arguments to not only establish logical appeals but ethological appeals as well. For example a lawyer may try to connect with a jury by using regional colloquialisms like yall’ or changing their accents by infusing them with regional dialects. At the same time, he or she, must establish trust by treating them as intelligent people. They must not be overbearing, but trust that the jurors will make the informed decision with all of the evidence. They must present this evidence in a way that they will see it themselves. They are not convincing, but rather presenting and this can be a powerful tool for defending their client down the road. Nevertheless, the opening statement is the first impression of the lawyer and the case itself. They say not to judge a book by its cover but it is up to the lawyer to ensure the jurors keep an open mind. If they decide that the person representing a party in the case is incompetent before the trial starts, it will be more difficult for later arguments in the case to make an impact on their opinions.
The first priority for any lawyer is that they know who their audience is, the jurors. Everything else that goes on in the process of a trial, no matter how publicized or culturally charged, is irrelevant. It is one misconception that we have of our legal system, which will be addressed later, that the opinions of the public should be influential in the decision. That is not the case. It is the jury, who is the lawyer’s lone audience.
Any good author, musician, artist, orator, or leader knows that the first step in convincing someone is knowing who they are. That way their strengths and weaknesses, opinions and preconceptions, and even sometimes vulnerability and innocence, can be isolated to instigate a positive response in the speaker’s favor. Lawyers are able to learn about their audience, and even isolate it in their favor for the selection of the jury. In high profile murder cases, just because one is summoned by the court to jury duty doesn’t mean that they will be on the jury in the case. Sometimes roughly 200 people are called to the jury, and each one is questioned by both the defense and the prosecution. Since both the prosecution and the defense can appeal which jurors are selected it becomes a passive aggressive chess match for obtaining jurors in an attorney's favor. For example, parents may be controversial jurors for any cases involving the rape, disappearance or murders of minors, because the influence pathos can make on their decision making. This will ultimately help one side of the case. Other times, lawyers may look for one juror who is an outsider, similar to the phenomena that occurred in twelve angry men, to increase the likelihood of a hung jury, or increase the fairness of the trial in general if there is worry about civil rights influence. Lawyers are not only allowed to petition jurors on presumption of guilt and challenges for cause, they are also reserved a set amount of peremptory challenges to swing the experience of the jury in their favor. It is a tactical game of rhetoric that many overlook.
Obtaining an optimal audience is one thing, executing and delivering a statement that isolates the vulnerabilities of the jury is another. Attorneys can use a wide variety of devices in their arguments to not only establish logical appeals but ethological appeals as well. For example a lawyer may try to connect with a jury by using regional colloquialisms like yall’ or changing their accents by infusing them with regional dialects. At the same time, he or she, must establish trust by treating them as intelligent people. They must not be overbearing, but trust that the jurors will make the informed decision with all of the evidence. They must present this evidence in a way that they will see it themselves. They are not convincing, but rather presenting and this can be a powerful tool for defending their client down the road. Nevertheless, the opening statement is the first impression of the lawyer and the case itself. They say not to judge a book by its cover but it is up to the lawyer to ensure the jurors keep an open mind. If they decide that the person representing a party in the case is incompetent before the trial starts, it will be more difficult for later arguments in the case to make an impact on their opinions.
Opening Statements: George Zimmerman Trial
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It was one of the most controversial trials of the decade. On February 26, 2012 while walking home from a local convenient store on a rainy Sunday night, 17 year old African American teenager Trayvon Martin was shot and killed after an altercation with neighborhood watchman George Zimmerman. It was a scenario that shook the foundation of the African American community and lead to protests over racial prejudice that would last throughout the summer of 2013 when the trial occurred. As with every trial grounded in circumstantial evidence, evidence that is reliant upon inference, it was clearly evident the rhetoric would be used sharply by both teams of attorneys to fill in the holes in the case that could never be answered without the testimonies of both Trayvon Martin and George Zimmerman together. Over the course of the trial the prosecution cast George Zimmerman as a “wannabe cop,” a white male who was on a “power trip” with a badge, and whose intentions that night to kill Treyvon Martin were rooted in a racial hatred of vehement bigotry against people of color. The defense on the other hand, cast Zimmerman as a victim of a violent assault which left him with a deviated septum, and lacerations to the back of his head, and that he pulled the trigger because he was in fear of his life. Two different stories, 1 set of evidence that could be interpreted both ways by the jury. The trial which would last for just under a month ended with the six person jury finding George Zimmerman not guilty of all counts of both murder and manslaughter. Although racial undertones still exist as a result of this verdict and the facts of the case can be argued for days, the opening statements by both teams of lawyers demonstrate the extent that rhetoric plays in the legal process.
John Guy took the podium first representing the state prosecution. His opening statement which would last roughly 34 minutes told the narrative of a young man, with a bright future whose life was cut too short by a racial bigot. He begins his remarks with a statement Zimmerman made in an interview about the people who had been burglarizing his Florida community, “These F***ing punks, they always get away.” Guy would continue to use such vulgar language repeatedly throughout his statement as a method of dehumanizing the defendant, and every seething word said with such an emphatic tone would suck the air out of the courtroom. He then continued to tell the story of the night Trayvon Martin was killed, using the present tense often in an attempt to place the jurors into the scene of what he was describing. In contradiction to the way he characterized Zimmerman, Guy took extra care to make sure the jury understood that this was a defensless child, whom just minutes before, was “doing what kids do, watching video games and playing TV” with a 12 year old friend. After walking home from the convenient store to get snacks and a drink Guy emphasized that the only thing Martin was armed with, were 23 ounces of Arizona iced tea, and a pack of skittles. Continuing, he used just as much detail to describe the “Kel-Tech semi-automatic 9mm pistol in the ready to fire position with a round already in the chamber.” Guy’s tone was conservative and his pace slow, and he spoke very articulately and distinctly emphasizing only the harshest of words to defame the character of Zimmerman and ensure that the pathos he was using would hit the six member all female jury. He did as all lawyers know well, started strong, put his weaker evidence of contradictory witnesses in the middle, and concluded succinctly and with equally strong claims and conclusions. He would set the standard of the trial that Zimmerman, “put the bullet straight through the heart... and that by the end of this trial you (the jury) will know in your head, in your heart, in your stomach, that George Zimmerman did not shoot Trevon martin because he had to, but for the worst of reasons, because he wanted to.”
When Don West addressed the jury 15 minutes later the narrative and tone he would deliver were much different. His discourse was not as well planned and emotionally driven as Guy’s, in fact, West’s opening statement would last for just shy of 2 hours, many of that time spent pausing in-between each piece of evidence delivered. This was not nerves by this seasoned defense lawyer but rather as I would claim, a deliberate rhetorical means for sucking the life and influence of Guy’s emotionally filled account of the facts of the case. Using props, maps, and audio recordings, West described the night Martin was killed in a broken manner. He included detail after detail of the case and its specificities that I believe were intentioned to detract the jurors preconceptions of Zimmerman himself and towards the facts of the case. Although this lengthy discourse was not as appealing to the jurors in comparison to Guy’s whose strongly given argument was sound both grammatically and structurally I believe it achieved its purpose of lessening the impact of the prosecutions opening statement. He deflated the pressure that Guy had left the court room by explaining that there are no winners in this case, “One man lost his life; one man is fighting for his.” This statement was made intentionally to humanize Zimmerman when the media and prosecution were attempting to do quite the opposite. Unlike Guy who capitalized on the jurors sympathy as mothers, wives, and one a victim of domestic violence to support the need for justice against Zimmerman, West seemed to lack a sense of connection with the six person all female panel. (Alcindor, 2013) He erred when he received brutal criticism by the media when beginning with a knock knock joke which fell flat in the court room. “Knock Knock. Who’s there? George Zimmerman? George Zimmerman who?” In an attempt to establish that all of jurors should keep an open mind to who George Zimmerman is as a person, no one agreed that a murder trial was the correct occasion to bring up joking matters. In the end, West’s drudgingly strung out opening statements and errors would not impact his desired outcome of the case, but it goes to show how much something as simple as the SOAPSTONE rhetorical pneumonic device taught in high schools, can be of significance when gaining the trust and respect of the jury.
Rhetorical Connections to Ferguson Riots
In a similar way to the case of George Zimmerman, both sides of the media and the public decided to cast Michael Brown in contrasting ways. Here, visual rhetoric was used to persuade the public on whether the actions of Fergus Police Officer Darren Wilson were in self defense after a confrontation with Brown on August 9, 2014. One side attempted to cast Brown in the same way that Trayvon Martin was characterized, an innocent man who was slain at the hands of racist crime. A bright individual with a future, whose life was cut dramatically short. Those in defense of Officer Wilson characterized Brown in a much more violent way; a large street bully with an intimidating stature and presence. The photo to the left is an example how these two rhetorical attempts collide. Both pictures are of Mike Brown; one in his best of times, the other in quite arguably the worst of his times. The person doesn't change, but the rhetoric does.
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